Thursday, March 27, 2008

Did Aryeh Neier see this coming?

I gave a seminar presentation two days ago to a group of fifteen upper-year law students on the topic of hate-speech legislation and why it should be repealed. A very spirited discussion ensued, and although a couple of students became visibly upset at one time or another, generally it was very stimulating and a genuine pleasure to take part in. Not one person who spoke, however, agreed with my thesis that hate-speech laws are 1) enforced in a manner that is procedurally unfair, 2) ineffective at combating racism, and 3) morally indefensible for a host of reasons.

The arguments against my proposals were many, and all very thoughtful. We disagreed over whether certain kinds of expression - such as the Muhammad cartoons and Mark Steyn's article "The future belongs to Islam" - could be considered likely to expose a person or group of persons to 'hatred and contempt' as defined in the Taylor case from 1990 ("unusually strong and deep-felt emotions of detestation, calumny and vilification"). Another argument, as discussed in my last post, was that much of this speech, whether technically hateful or not, had little or no inherent value, and therefore society would not lose much from its suppression.

I won't try to recap the entire discussion now, but I would like to deal with what I (and my interlocutors, I think) consider one of the strongest arguments in favour of hate-speech laws and censorship. This line of reasoning is one I have encountered in conversations with many other people, including some very informed lawyers. It goes something like this: we need reasonable limits on free speech to protect the rights of vulnerable groups in society. These groups have the right to be free from violence, to feel secure in their communities, to have their voices heard. For their sake, it is appropriate to place some restrictions on the speech rights of dominant groups - whites, heterosexuals, Christians.

I mean, it is all well and good to defend the free speech rights of Stephen Boissoin in an abstract, constitutional sense, when the pastor writes an allegedly homophobic letter to his local newspaper (see that case here). "You can defend him," the argument goes, "because you are not a gay teenager in Red Deer - constantly fearing for your safety, feeling like an outcast, wondering when those guys at school are going to attack next, seeing the looks and hearing the jeers of a homophobic community. And sure, it's easy for you free speech absolutists to tell me that Levant and Steyn have a right to publish the things they did, and cite me a stack of old English parchment like the Magna Carta and the Areopagitica. All that is fine for John Milton and those dead barons, but they were never Muslims living in a post-9/11 climate of fear. They never had to deal with the 'no-fly list' or the Patriot Act or CSIS agents coming to their door at 2 a.m. You cannot understand the daily sensation of being under attack in your own country, because you are part of the dominant group. These restrictions on speech are not there for the benefit of you, the powerful; they are there for the benefit of us, the vulnerable. "

Now, how are those in favour of free speech to respond to that argument? I must say that this is the danger inherent when you make constitutional rights versus safety concerns a question of "balance." When you frame the issue like this, whose rights are going to tip that scale? The rights of someone republishing some silly cartoon, or the rights of the helpless teenager threatened by rednecks? Does Mark Steyn's right to say whatever he wants about the Muslim community in Europe outweigh the safety concerns of the Muslim community in Orillia, or Mississauga, or Vancouver?

This argument appears so strong at first, but in fact suffers from a fatal weakness: The one concerned about safety would have the Charter right to free speech eroded for fear of possible hate crimes. Those who advocate free speech argue against such state intervention. Bearing in mind that the Charter is only binding upon the state, those who would have it breached have a much more difficult case to make. We all agree that the victim of a hate crime has had his rights to security of the person (and possibly the right to equality) violated by the criminal. However, the person who suffers censorship has had her rights violated by the state. This is a crucial distinction.